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Full text of "Bailey v. The Right House Limited, Board of Inquiry, October 1980 BOI 118"

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AND IN THE MATTER OF a complaint 
made by Mr. Kingsley Bailey of 
Hamilton, Ontario alleging 
discrimination in employment 
by The Right House Limited, 35 
King Street E., Hamilton, Ontario 
and their servants. 



OCT 2 4 1980 


Board of Inquiry 

M. R. Gorsky 

Appearances : 

Mr. D. D'Oliveira, Esq, 
- and - 

Mr. A.C. Millward 

Counsel for the 
Ontario Human Rights 
Commission and the 
Complainant, Mr. 
Kingsley Bailey 

Mr. J.S. Kelly 

Counsel for The Right 
House Limited 

Dates of Hearing 

March 15,17,18 and 
19, 1980 

Place of Hearing 

City Hall, 71 Main St. W. 
Hamilton, Ontario. 


€ ! 


In this case, the complainant, Kingsley Bailey, 
complained that he was "refused continuance of employment, 
dismissed from employment, and was ... with respect to terms 
and conditions of employment" discriminated against by 
The Right House Limited, 35 King Street East, Hamilton, 
Ontario, its servants and agents by reason of his race and 
colour, contrary to sections 4(1) (b) and 4(1) (g) of the 
Ontario Human Rights Code, R.S.O. 1970, c.318, as amended. 
On the 19th day of October 1979, I was appointed a board of 
inquiry to inquire into the above complaint. Mr. Millward, 
co-counsel for the Commission, acknowledged that in order 
that I can make a finding of discrimination, as alleged, I 
must be satisfied that, on a balance of probabilities, the 
Respondent, The Right House Limited, did discriminate against 
the complainant, contrary to the sections of the Code referred to 

Mr. Bailey, who is a black man of the Negro race, 
was, in the fall of 1976, when he was 17 years of age, hired 
by the Respondent as a salesman with the intention of his working 
during the Christmas season. His employment continued beyond 
the Christmas season and he worked, thereafter, on a regular, 
part-time basis, usually on Thursday and Friday nights and on 
Saturdays . 

From the evidence, it was clear that Mr. Bailey got 
on well with almost all of his fellow employees and he was a 
well liked member of the Respondent's staff. It appears further 
from the evidence that he performed his job of salesman well and 
his rating sheets disclosed that this was the case in most catego 



provided for. In addition, the evidence discloses that of 
approximately 400 persons employed by The Right House Limited, 
Mr. Bailey was one of the few black people hired. There was 
evidence indicating that except for an Angela Best, who had 
worked for the Respondent for a few weeks and one, Ingrid Knowle, 
who had worked for the Respondent for an unspecified, short period 
of time, Mr. Bailey was the only black person on staff. 

The incident which precipitated the complaint occurred 
on Saturday, March 25, 1978, when Mr. Bailey was summoned to the 
office of Mr. Gary Hurtubise, the then superintendent of the 
Respondent, which function included his being in charge of 
personnel matters. Mr. Hurtubise was absent from the store at 
the time. At that time Mr. Bailey was confronted by Mr. Stan 
Johnson, who was the manager of the Respondent's drapery department 
and who also functioned as assistant superintendent with responsi- 
bility for personnel matters in the absence of Mr. Hurtubise. Also 

present at that time were Mrs. Christina Sigfridson, a store 
detective, Tony Wilson, an acquaintance of Mr. Bailey, and two 

police officers, Constable Jones and Constable Mason. At 

that time Mr. Bailey was advised that there had been a 

theft of ties by Mr. Wilson. Mr. Johnson informed Mr. Bailey 

that this matter would have to be brought to the attention of 

Mr. Hurtubise. When Mr. Bailey returned to work the following 

week, the date being unclear, following a conversation with 

Mr. Hurtubise, Mr. Hurtubise discharged Mr. Bailey for failure 
to protect store merchandise at the time of the theft by Mr. Wilson. 
Mr. Bailey denied being involved in the theft by Mr. Wilson or 
that his actions in any way facilitated the theft. It should be 
noted that Mr. Wilson was also a black man. 

It should be emphasized, and Mr. Millward, for the 
Commission, stressed the fact, that the principle submission 
as to discrimination was not based upon any allegation of overt 
discrimination. It was, however, as a result of the above mentioned 
incident that Mr. Bailey filed the complaint which has given rise 
to this proceeding. Mr. Millward explained his position as follows: 
The Ontario Human Rights Code requires that conditions of employment 
must be the same for persons of all races and colours and that 
the criteria for dismissal of employees must be applied equally 
to persons of all races and colours. Mr. Millward argued that 
in the case of three employees dismissed in the past, being a 
Mrs. Putney, a Mrs. Alvey and a Mrs. Cameron, the reasons for 
dismissal were all based on actual thefts or involvement in 
thefts. Mrs. Putney had been apprehended by Mrs. Sigfridson, 
the store detective employed by the Respondent, with unpaid for items 
on her person. Mrs. Alvey had confessed that she had aided and 
abetted Mrs. Putney and both had given statements to that affect 
to representatives of the Respondent. Mrs. Cameron was discharged 
when it was discovered that she was responsible for work shortages 
although the representatives of the Respondent believed she, also, 
was involved in the thefts by Mrs. Putney. Mr. Bailey, on the 
other hand, was dismissed for failing to protect merchandise. 





Accordingly, it was submitted, that Mr. Bailey was the subject 
of disparate treatment and that disparate treatment was discrim- 
inatory. Mr. Kelly, counsel for the Respondent submitted that 
the reason for Mrs. Cameron's discharge was stated to be a "work 
shortage" and she is stated to have denied any responsibility 
for the shortage. Nevertheless, she was still discharged. I 
would find that looking at the case -of Mrs. Cameron, it is difficult 
to conclude that her treatment was significantly different from 
that of Mr. Bailey. "Work shortage" falls short of an employee 
being found with stolen property , even though the agents of the 
Respondent believed she was in some way invloved in the thefts 
committed by Mrs. Putney. Similarly, there was no admission of 
responsibility in the case of Mrs. Cameron. Although the Respondent 
discharged Mr. Bailey for failing to protect its merchandise, 
as in the case of Mrs. Cameron, it is apparent that the Respondent 
suspected Mr. Bailey was somehow involved in a theft. 

Mr. Millward acknowledged that his argument was not 
predicted upon my finding that there was any overt evidence of 
racial or colour discrimination or even the need to find that 
there was any intention on anyone's part to discriminate against 
Mr. Bailey , contrary to the provisions of s.4(l) (b) and s.4(l) (g) 
of The Ontario Human Rights Code. His conclusion merely required 
a finding that the treatment afforded Mr. Bailey and any other 
group of employees with respect to terms or conditions of 
employment was different. It should be noted that with respect 


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to terms of hiring, increases in salary , opportunities for continued 
employment and overt treatment, the evidence disclosed no examples 
of Mr. Bailey being treated differently from white employees. His 
qualities as a salesman where recognized and salary increases 
granted in accordance with what appears to be a standard Company 
practice. Similarly, his evident qualities as a salesman were 
recognized in maintaining opportunities for part time work. 

Mr. Millward, employing the same argument, relied on the 
case of Mr. Ross Depalma, who was employed as a salesman in the 
store. When an acquaintance of his (Mr. Keith Morton) stole a 
pair of gloves during a period of time when Mr. Depalma had left 
the area where the merchandise was located, Mr. Depalma was only 
reprimanded. In Mr. Millward' s submission, the circumstances 
in the Depalma incident were not in any significant sense different 
from those affecting Mr. Bailey, at the time the ties were stolen 
by Mr. Wilson. The only difference suggested by Mr. Millward was 
that there was an inference drawn in the case of Mr. Bailey that 
he was somehow involved in the theft by Mr. Wilson, while in 
Mr. Depalma* s case an opposite conclusion was arrived at. Mr. 
Bailey was discharged and Mr. Depalma received only a verbal 
reprimand. This, it was suggested, represented another example 
of disparate treatment being applied to Mr. 3ailey. 

Mr. Kelly submitted that the cases of Mr. Bailey and Mr. 
Depalma were distinguishable. He argued that the evidence disclosed 
that Mr. Keith Morton, an acquaintance of Mr. Depalma, came into 
the store and engaged Mr. Depalma in conversation. Mr. Depalma 




was asked for some money by Mr. Morton. Mr. Depalma, after 
refusing the request, moved away from Mr. Morton in order to 
serve a customer. It was at this time that Mr. Morton stole 
the gloves. Mr. Kelly contrasted this situation with the one 
involving the theft of ties by Mr. Wilson. My examination of 
the evidence satisfies me that at the time Mr. Bailey moved away 
from Mr. Wilson, who to Mr. Bailey's knowledge had no money 
with which to make a purchase, it was not to serve a customer. 
While Mr. Bailey was away from the counter on which the ties 
had been placed, Mr. Wilson pushed them off the counter from 
whence they fell into an open bag which Mr. Wilson had placed 
on the floor. The significant characteristic of the Company's 
response to both incidents is that it was consistent with a 
standard pattern of behaviour. As the representatives of the 
respondent viewed such events they bespoke of conclusions 
consistent with or inconsistent with involvement in a theft. 
To the Company, failure to protect Company merchandise, while not 
amounting to theft was related to theft. In the case of Mr. Depalma, 
attending to a customer was less blameworthy f even though Mr. Depalma' 
absence from the glove counter enabled Mr . Morton to complete the 
theft. Mr. Bailey on the other hand, it was concluded, should not 
have left the counter where Mr. Wilson was located when no pressing 
duty required it. Such action, in leaving the counter, was 
perceived of as more blameworthy than the case involving Mr. Depalma. 


Mr. Millward also relied upon the fact that Mrs. 
Sigfridson had, at one time, requested another employee, Mrs. 
Orla Thompson, to keep Mr. Bailey under surveillance and he was 
the only person with respect to whom such a request had been made 
of Mrs. Thompson, notwithstanding that Mrs. Sigfridson was, at 
that time, keeping a number of other persons under surveillance. 
This, it was suggested, represented a condition of employment 
which did not apply to other employees. Mr. Millward emphasized 
that while these acts did not amount to a situation where a finding 
of overt discrimination could be made on the basis of race or colour 
or that it amounted to an intention on the part of the employer 
to discriminate, it did, represent an evidentiary basis for a 
finding of disparate treatment amounting to a breach of sections 
4(1) (b) and 4(1) (g) of The Ontario Human Rights Code. I am 
satisfied that Mrs. Sigfridson did not limit her requests for 
assistance in maintaining surveillance of employees in the manner 
suggested and that Mrs. Thompson was not the only employee who 
assisted Mrs. Sigfridson in the manner suggested. I found it 
significant that Mrs. Thompson did not find Mrs. Sigfridson to 
manifest feelings of prejudice based on race or colour but she 
did find her overzealous, on occasion, and this appeared to Mrs. 
Thompson as if Mrs. Sigfridson was intent on pursuing matters 
where an employee was, in fact, blameless. 

It was Mr. Kelly's position that the defence of the respondent 
could be based on the fact that on the information available to it, 
it was more than justified in dismissing Mr. Bailey. In the altern- 






ative, should it be found that all of the allegations made and 
the observations made by Mrs. Sigfridson were unfounded, the 
decision to discharge Mr. Bailey was based on those observations 
and not, in any way, on the basis of his race or colour. 

My examination of the evidence satisfies me that Mrs. 
Sigfridson followed a uniform pattern of surveillance and that 
this pattern did not vary, in any material respect, when it was 
directed at white or black employees. From the evidence of Ross 
Depalma it appears that the pattern of surveillance described by 
Mrs. Sigfridson was usual and part of the routine expected by 
employees. Mrs. Sigfridson, in carrying out her surveillance, did 
not usually request explanations from employees who were the subject 
of surveillance. In accordance with her experience and with the 
knowledge and consent of her supervisors, she recorded her observ- 
ations. Many of those observations led to suspicions but she did 
not act unless she concluded that she had more than a suspicion 
to act on. There is no question that she had kept Mr. Bailey 
under surveillance for some time and, based on these observations 
had arrived at certain conclusions negative to Mr. Bailey. There 
was a great deal of other evidence which indicated that Mrs. 
Sigfridson had many other employees under surveillance and had 
similar suspicions of the propriety of some of their conduct. 

I do not have to agree with the methodology employed by 
Mrs. Sigfridson or with the conclusions she drew from her observ- 
ations. Nor do I have to agree with the practice of letting 
suspicion pile on suspicion without endeavoring to obtain an 
explanation from, an employee suspected of wrongdoing. My agreement 






with the method of operation of store security procedures is not 
in issue. The issue is: were they uniformly applied to black and 
white employees? 

Mr. Bailey, while candidly acknowledging that Mrs. 
Sigfridson had never said anything to him which might be 
considered racially motivated, testified that she apparently 
avoided saying "hello" to him in response to his greetings. 
Mrs. Sigfridson denied that this was the case and the evidence 
of Ross Depalma was contrary to that of Mr. Bailey. 

What we have in this case is a system of surveillance 
which affected many employees, almost all of them white. 
Conclusions were made by Mrs. Sigfridson, that certain types of 
conduct indicated a likelihood of involvement in the theft of 
Company property or that other irregular conduct was being engaged 
in by an employee. In the case of Mr. Bailey I cannot find that 
his being under surveillance with respect to a number of incidents 
demonstrated that he had been singled out for disparate treatment. 
As I have already indicated it is not necessary for me to find 
that the Company's surveillance techniques were either warranted 
or profitable and I emphasize that I am not judging them in this 
light. What Mrs. Sigridson saw as being suspicious, in the conduct 
of Mr. Bailey, was based on a set of standards that I find she 
applied uniformly in the case of all employees. 

The essential correctness of Mrs. Sigfridson' s objective 
observations was not seriously undermined and Mr. Millward acknow- 
ledged this. My view of the matter might be altered considerably 
if it was demonstrated that Mrs. Sigfridson' s observations, as 
recorded by her, were in any meaningful way different from what 




had actually taken place. This might be some evidence indicating 
that when observing a black man her perceptions were warped. There 
was no such evidence. 

Concerning the question as to what conclusions are to be 
drawn from a failure to ask Mr. Bailey for explanations of the 
other events observed by Mrs. Sigfridson, it appears that she was 
instructed not to do so, in the case of all employees. 

Of additional significance is the fact that Mr. Stan 
Johnson observed the final event (the theft by Mr. Wilson) and 
reported what he saw to Mr. Hurtubise, who acted on Mr. Johnson's 
and Mrs. Sigfridson' s information. There was no suggestion that 
Mr. Johnson was looking at the matter in a warped manner. 

I do not believe that Commission counsel was relying on 
the failure to advise Mr. Bailey of the fact that he had been 
under suspicion with respect to a number of incidents as 
amounting to a breach of sections 4(1) (b) and 4(1) (g) of The 
Ontario Human Rights Code. Such a requirement would impose a 
burden with respect to black employees that was not assumed 
with respect to white employees. Certainly there is no evidence 
that such information had been conveyed in the cases of Mrs. 
Putney, Mrs. Cameron, Mrs. Alvey or Mr. Depalma. 

The only evidence, of discrimination relied on by Mr. 
Millward, who readily acknowledged this to be the case, was 
circumstantial in nature. The fact that there had been very 
few black employees in the store and, that at the time in question, 
Mr. Bailey was the only black employee, is, in the circumstances, 
insufficient evidence of discrimination against blacks. That 






such evidence might, in combination with other evidence, be 
capable of supporting a case of discrimination does not affect 
my assessment of the evidence in this case. There will often 
be cases where a peculiar coincidence of events, in the context 
of shallow explanations proferred, are indicative of discrimination. 
I am not unmindful of the fact that many acts of racial discrim- 
ination are not overt but are carried out in a subtle fashion, 
leaving a conclusion to be inferred from the conduct in question. 
In such case strong suspicions are created by what would otherwise 
be unlikely coincidences and patterns of events. 

At the conclusion of his argument Mr. Millward summarized 
what he viewed to be the issues before me: "(a) to decide just 
what it is that Mr. Bailey did or didn't do and (b) to decide 
whether his treatment was different from anyone else's". 

These issues were seen in the same manner, in all 
fundamental respects, by Mr. Kelly. However, Mr. Kelly observed 
that even if I found that Mr. Bailey had in no way been involved 
in the theft committed by Mr. Wilson, the question would remain: 
was the behaviour of the various persons who represented the 
Respondent and who were involved in the incidents affecting Mr. 
Bailey of such a nature as to disclose a breach of sections 
4(1) (b) and 4(1) (g) of The Ontario Human Rights Code? 

As I have found that there was no significant difference 
in the way the Respondent treated all of its employees who were 
the subject of surveillance and in the way that it acted in 
response to conclusions derived from such observations, I find 


that there has been no breach by the Respondent of section 4(1) 
(b) and section 4(1) (g) of The Ontario Rights Code, as alleged 
in the complaint. If the Respondent treated Mr. Bailey unfairly 
it was the result of a process uniformly applied to all employee 
be they black or white. 

witness who endeavored to tell his story in an honest and 
straightforward fashion cannot affect the result in this case. 
I suspect that some of the feelings engendered in Mr. Bailey 
were a response to what he could, with some justice, perceive 
as peculiar practices being conducted by the Respondent as 
part of its security operations. Because, on the facts of this 
case, they were directed at him, they could easily be seen as 
being motivated by other than security considerations. I have 
before me evidence of these operations as they were applied 
to all employees and I have concluded that they were applied 
uniformly to all employees. That being the case, for the purpos 
of adjudicating upon the complaint, no purpose would now be 
served in undertaking to go further into the question of guilt 
or innocence. 

DATED AT London, Ontario 

The fact that I found Mr. Bailey to be a forthright 

22 October, 1980 

M. R. Gorsky 
Board of Inquiry